Yet another opinion has held section 3 of DOMA, the Defense of Marriage Act, unconstitutional.

Coming on the heels of the First Circuit's opinion issued last week, today's opinion by federal district judge for the Southern District of New York, Barbara Jones, in Windsor v. US reached the same conclusion that section 3 of DOMA does not pass rational basis. In November 2010, Edith Windsor filed a complaint in the Southern District of New York as the survivor of a same-sex couple married in Canada. Windsor sought a refund of estate taxes paid because the marriage was not recognized by the federal government and argued that the Defense of Marriage Act, DOMA, section 3 is an unconstitutional denial of equal protection. The New York Attorney General filed an amicus brief in support of Windsor.

Judge Jones' opinion rehearses grounds that are becoming quite familiar, and while she cites and quotes the First Circuit's opinion in Massachusetts v. HHS, she does not substantially rely upon it.

Instead, Judge Jones does not stress the heightened rational basis standard for legislation based on animus, but concluded that the Congressional interests support DOMA did not pass the threshold of being "legitimate." Judge Jones specifically considered the additional interest advanced by BLAG (supporting DOMA) that Congress intended to approach "same-sex marriage with caution." Judge Jones did not quite say that this was not a legitimate interest, but did conclude that "whatever the social consequences of this legal development" that is same-sex marriage "ultmately may be, DOMA has not, and cannot, forestall them."

Of particular interest to New York constitutional scholars, Judge Jones confronts Hernandez v. Robles, the 2006 decision by New York's highest court that rejected a constitutional claim against barring same-sex marriage. Yet this is in the context of Windsor's standing to raise the claim as to the 2009 tax year. As Jones notes, subsequent executive and legislative action in New York has disavowed that stance in 2009, rendering BLAG's reliance on the case to show a lack of injury "unpersuasive."

DOMA, it can certainly be said, has had its constitutionality seriously cast into doubt, yet again.